In November 2005, Bilal Abdullah interviewed with UPS’s Rochester, New York facility for the position of seasonal driver’s helper and sorter. When told by the interviewer that he would need to shave his beard in order to be considered for the position, Abdullah explained that he was a practicing Muslim and maintaining a beard was part of his religion. He was told there were other seasonal positions available that would not require him to shave his beard, but at orientation, Abdullah was asked to sign a form stating he would shave his beard. When he again stated that he could not shave his beard, he was logged out of UPS’s computer system and was not hired. UPS, however, claims that Abdullah was not hired because he provided a false social security number in his job application. Abdullah subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC)’s Buffalo, New York office, alleging religious discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).
A similar claim was filed with the Texas Workforce Commission and EEOC in April 2007 by Muhammed Farhan. Farhan was also a Muslim and began working at UPS in Dallas, Texas in 2001. In January 2007, UPS accepted Farhan’s bid for a full-time driver position and in April 2007, he was told to report for a full time driver position. However, when he did so, he was told that UPS did not allow anyone with a beard to be a driver. Farhan spoke with his manager and union representative and asked for a religious accommodation. His manager told him that he simply could not be a driver if he had a beard, and that he would have to return to his non-public-contact position of package handler if he would not shave his beard. Farhan then went to the local human resources office and asked for a form to request a religious accommodation, but was told by two human resources officers that they knew of no such form. Two days later, he went to the UPS hub in Mesquite, Texas and another human resources officer in that office did not know about any such form. Two months after filing his complaint with the Texas Workforce Commission and EEOC, Farhan was contacted by the UPS District Manager for Human Resources and provided with a religious accommodation request form. Farhan filled out the form and the request was granted in late June 2007.
UPS has “Appearance Guidelines” which prohibit employees who have contact with the public from having any facial hair below the lip. In approximately 1999, UPS formalized a religious accommodation policy, which would allow for limited exceptions from those guidelines for religious beliefs. Though various memorandums produced in the course of the EEOC’s investigation outline in detail the methods used to ensure a consistent manner of handling requests for religious accommodations, the EEOC alleges that, in practice, decisions are made about such requests by the human resources staff at the UPS facility where the request is made, on a case-by-case basis.
On July 15, 2015, the EEOC filed a lawsuit against UPS in the United States District Court for the Eastern District of New York, alleging that UPS systematically practices religious discrimination against male employees whose religion required them to wear beards. The Complaint cites the treatment of both Farhan and Abdullah as examples of such discrimination, and also lists numerous other examples of such alleged discrimination. The Complaint alleges, primarily, that UPS systematically and nationwide (a) refuses to promote, hire, or transfer to a different position individuals whose religion conflicts with its Appearance Guidelines, and (b) segregates individuals on the basis of their religion, by placing individuals whose beliefs conflict with the Appearance Guidelines into “back”-of-the-facility positions, which involve no customer contact.
Significance and Timing of the Lawsuit
This new complaint is particularly noteworthy in light of the June 2015 decision by the United States Supreme Court in EEOC v. Abercrombie & Fitch, in which the Court held that to prevail in a disparate-treatment (intentional discrimination) claim under Title VII, an applicant/employee need show only that his/her need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his/her need. Based on the Abercrombie & Fitch decision, an applicant/employee does not need to request a religious accommodation in order to later bring a claim for failure to accommodate/religious discrimination. Instead, the applicant/employee need only show that his/her need for an accommodation was a “motivating factor” in the employer’s decision. In other words, the Court ruled that “an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”
In Abercrombie & Fitch, this meant that the employer improperly refused to hire an applicant based on the presumption that the applicant would need a religious accommodation/exemption from its “Look Policy,” prohibiting employees from wearing “caps,” because the female applicant wore a headscarf to her job interview. There was no discussion of the applicant’s need for an accommodation at the time of the interview, but the evidence reflected that Abercrombie & Fitch supervisors believed the applicant was wearing a head scarf for religious reasons, that wearing the head scarf would violate the company’s Look Policy, and, therefore, the applicant should not be hired. The Court expressly declined to rule on whether the motive requirement can be met where there is no evidence that an employer at least suspected the practice in question (i.e., having a beard or wearing a head scarf) is a religious practice.
The primary issue, then, in EEOC v. UPS will be whether UPS’ decisions not to hire, or not to promote and/or transfer positions was at all motivated by the desire to avoid an accommodation.
Based on the Abercrombie & Fitch decision, employers need to remember, and train their supervisors, that they may be required to provide or offer accommodations to applicants or employees for certain religious practices – even if the applicant/employee has not requested such an accommodation.
Also, it is evident in the UPS suit that a major part of the problem which led to the lawsuit was the inconsistent handling of requests for accommodations based on religious beliefs and practices. Some individuals were told that no exemptions to the Appearance Guidelines were permitted, whatsoever. Other individuals were given a form to fill out to request a religious accommodation but received no response for nearly a year or more. Regardless of the outcome of this lawsuit, employers are best advised to create a standard procedure and protocol for handling requests for religious accommodations and properly train their supervisors and human resources professionals to ensure that the procedure is implemented consistently.
Melissa M. Whitehead, Attorney at Law | Weintraub Tobin